1. The above two appeals are by two brothers Khan Saheb Abdul Ghani and Khan Saheb Abdul Shacoor against a common order dated 2-12-1952 passed by the Revenue Commissioner and Custodian of Evacuee Property in Mysore in Evacuee Property Case No. 12/51-52. The two writ petitions are by the same parties and are made under Article 226 of the Constitution of India and therein they have prayed that the same order of the Custodian may be quashed by a suitable writ.
2. This case has had a chequered history to which it is necessary briefly to refer. Shortly afterthe partition between what is now known as the territory of India and Pakistan, the then Government of His Highness the Maharaja of Mysore being satisfied that circumstances existed which rendered it necessary to take immediate action to provide for the administration of evacuee property in Mysore and in exercise of the powers conferred by Sub-section (1) of Section 31 of the Government of Mysore Act of 1940. enacted Act No. 47 of 1949--The Mysore Administration of Evacuee Property (Emergency) Act of 1949. Thereafter the Custodian of evacuee property in Mysore, by virtue of his powers under Section 6 of that Act, notified in the Mysore Gazette dated 21-9-1949 the properties of the appellants as evacuee properties which had vested in him under the Act.
The appellants then applied to him under Section 8 objecting to their properties being so treated and their applications were transferred for enquiry to the Deputy Commissioner and Deputy Custodian of Bangalore District. He overruled their objections and declared their properties as evacuee properties by an order dated 17-4-1950. Against that order the appellants appealed to the Custodian and that officer passed a long and considered order on 22-8-1950. He found that there was not sufficient evidence to treat the appellants as evacuees as denned in Section 2 (c) (i), (ii) and (iii) of the first (Emergency) Act and that consequently the properties in question belonging to the appellants could not be treated as evacuee properties. He, therefore, set aside the order of the Deputy Custodian and allowed the appeals.
He made a reference to the first (Emergency) Act apparently because by that time in Mysore a second Act had been passed by the Government of His Highness the Maharaja of Mysore Act 74 of 1948-- The Mysore Administration of Evacuee Property Second (Emergency) Act. Subsequent to that order the Custodian General issued notice to the appellants on 3-10-1950 calling upon them to show cause why the order of the Custodian should not be revised. That notice purported to be under Section 27 of Act 31 of 1950 which was an Act enacted by Parliament on 17-4-1950 called the Administration of Evacuee Property Act of 1950. The Custodian General, who was not the Custodian General who issued notice, then heard arguments and made an order on 13-9-52 setting aside the order passed by the Custodian and he sent the case back to him with a direction that he should proceed to dispose of the case in the light of the evidence already recorded before his predecessor and such other evidence as may be produced by the appellants.
On receipt of the records the then Custodian made an interim order on 7-4-52 noting down certain points on which he thought evidence should be recorded. He also noted the names of certain witnesses who might be examined in addition to those who may be produced by the appellants and referred the matter to the Deputy Custodian of Bangalore for recording such evidence and re-submitting the file to himself for disposal. The Deputy Custodian accordingly recorded evidence and returned the records to the Custodian. The Custodian issued another notice on 10-7-52 calling upon the appellants to show cause why an order should not be passed declaring them as evacuees or in the alternative as intending evacuees and their properties as evacuee property under the provisions of Act 31 of 1950.
The appellants objected to this notice by an application dated 4-8-52. They represented that the proceedings against them were started under Section 8 of the Mysore Act 47 of 1949 and their claims were filed under Section 8 of the same Act. The Deputy Custodian had passed orders dismissing their claim; but on appeal it had been decided by the Custodian that though meanwhile other Acts had come into force both in Mysore and in India relating to evacuee property, their case was governed by Act 47 of 1949 which was the law in force when the proceedings were taken, and he had found that there was not enough evidence to treat the appellants as evacuees as defined in Section 2 (c) (i), (ii) and (iii) of Act 47 Of 1949. He had therefore set aside the order of the Deputy Custodian, Bangalore, and allowed the appeal.
The Custodian General while remanding the case to the Custodian had observed that the Custodian himself should dispose of the matter as that would give a chance to the appellants to appeal against any adverse decision and that having regard to the scope of the order of remand by the Custodian General the enquiry should be confined only to the narrow question as to whether the appellants were not evacuees within the meaning of Section 2 (c) of Act 47 of 1949; and they wanted the Commissioner to withdraw and cancel the notice issued to them.
On this application the Custodian made a considered order on 6-9-1952. He held that while in law there could be no objection for proceedings being taken in terms of the notice issued to the appellants, yet having due regard to the representations made by them that they would thereby be deprived of the right of appeal they would have had if such proceedings were to be started by the Deputy Custodian instead of the Custodian he was inclined on grounds of equity to concede the point with regard to the present proceedings before him and to confine the enquiry to the issue as to whether the appellants were evacuees or not within the meaning of Section 2(c) (i). That order, he observed, should not however be taken as a bar to any action that may be taken against the appellants independently under Section 19 of the Evacuee Property Act of 1950 at a later stage if necessary. The Custodian, who was not the Custodian who passed the first order, then made a final order on 2-12-1952 holding that the appellants were to be treated as evacuees and their properties as evacuee properties; and it is against that order that the appellants have come up in appeal to this Court.
3. The appeals are made under Section 30 of Act 47 of 1949 under which any person aggrieved by an order made under Section 8 may prefer an appeal to the High Court whether the original order has been passed by the Custodian, the Additional Custodian or the authorized Deputy Custodian. A preliminary objection has been taken on behalf of the respondent to the maintainability of the appeals and it is urged that by the time the Custodian passed the first order of August 1950. Act 47 of 1949 had been repealed and superseded by Section 53 of Act 74 of 1949 and later by Section 58 of Act 31 of 1950 which provided for no appeal to the High Court but only for revision by the Custodian General under Section 27 against an order like the one with which we are concerned in this case.
Reference has been made to the saving clause contained in those sections which provide that anything done or any action taken in exercise of any power conferred by the said Act 47 of 1949 shall be deemed to have been done or taken in the exercise of the powers conferred by these later Acts, and it is argued that the same means that the remedies open to a person aggrieved by an order of the Custodian can only be under Section 27 of Act 31 of 1950. It is also urged that the appellants have acquiesced in and submitted themselves to the jurisdiction of the Custodian General and cannot how challenge the revisional jurisdiction he has exercised in this case.
In answer Mr. Rajah Iyer, learned Counsel for the appellants, has urged that the right of appeal which had been expressly granted under Section 30 of Act 47 of 1949 in respect of proceedings initiated under Section 5 of that Act was in the nature of a substantive right and not one which related merely to procedure, that such a right to which the appellants had become entitled could not and had not been taken away except expressly by the subsequent Act, that the first order of the Custodian of August 1950 became final and was not subject to any revision by any other higher authority and that the action taken and order made by the Custodian General revising that order was 'ultra vires' and without jurisdiction and not in accordance with law. He represents that his clients have all along been contending before the Custodian and Custodian General that the proceedings in these cases which were initiated under Act 47 of 1949 were to be conducted and are governed by that Act alone notwithstanding the changes made in the succeeding statutes.
He further represents that even before the Custodian General this aspect was raised in the course of the arguments and an application was also made to that effect to the Custodian on 4-8-1952, which we have already noticed above. He has also relied on the terms of a notice dated 10-10-1952 issued by the Custodian which refers to the 'status quo ante' as having been restored as a result of the order of the Custodian General and the properties again vesting in the Custodian during the pendency of the case. He also urges that there can be neither acquiescence nor submission to a jurisdiction which did not exist and, that notwithstanding their objection, the Custodian General exercised his re visional powers, that in any event he has made no final order against the appellants but has merely directed a further enquiry by the Custodian, that even the Custodian in Mysore has in his first order conceded and recognised that the proceedings were to be governed by the old Act and that everyone concerned in this case has understood the proceedings as being governed by that Act alone.
4. There is considerable force in the contentions of the appellants. Even the Custodian in the course of his order dated 2-12-1952 has conceded in para. 3 that the contention of the appellants that the proceedings before him could only be under Section 2. (c) of the Mysore Act 47 of 1949 and not under the later Act Of 1949 as the same I could not have retrospective effect. He has held 1 that ordinarily the law in force at the time the 1 action started must govern the decision of such action at all stages and has referred to Case No. 46 decided by the Custodian General in support of that conclusion.
5. For the respondent reference has been made to an interim order dated 7-4-52 framing certain issues, notices dated 10-7-52 and 12-3-52 purporting to issue under Sections 22 (b) and 10 (3) of Act 31 of 1950 by the Custodian. But in view of the circumstance that the appellants' objections filed on 4-8-52 pointing out that the proceedings against them were started under Section 5 of the Mysore Act 47 of 1949 and that their claim was based on Section 5 of the same Act, and the order passed thereon on 6-9-52 allowing that application and confining the enquiry to .the issue as to whether they were evacuees or not within the meaning of Section 2 (c) (i), and the finding in the last order of the Custodian, these notices cannot have much significance. They are indicative of the uncertainty which prevailed in the mind of the Custodian with regard to the application of the two Acts.
6. in -- 'Hoosein Kasam Dada (India) Ltd. v. State of Madhya Pradesh', : 1983(13)ELT1277(SC) (A), Mahajan and S. R. Das JJ. have held:
'A right of appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decisions of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before a decision is given by, the inferior Court. Such a vested right cannot be taken away except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication.'
In that case the question arose whether the appellant's appeal was governed by the Central Provinces and Berar Sales Tax Act when the assessment proceedings were started or by a later amended proviso to Section 22 (1) of the Act. The Board of Revenue had taken the view that as the order of assessment was made after the amendment of the section and the appeal was filed thereafter, such appeal must be governed by the provisions of law as it existed at the time the appeal was actually filed and the law as it existed before the filing of the appeal could not apply to the case. The assessee then moved the High Court of Madhya Pradesh under Arts. 226 and 227 of the Constitution of India for an appropriate writ directing the Sales Tax Commissioner to admit and hear the appeal without demanding payment of the amount of sales tax assessed by the Assistant Commissioner of Sales Tax as required by the later amendment.
The High Court dismissed his application and the assessee thereupon applied for and obtained special leave to appeal to the Supreme Court. While allowing the appeal, their Lordships of the Supreme Court referred to -- 'Colonial Sugar Refining Co. v. Irving', 1905 AC 369 (B), where Lord Macnaghten, who delivered the judgment of the Privy Council, said
'that the only question before the Board was, was the appeal to His Majesty in Council a right vested in the appellant on the date of the passing of the Act or was it merely a matter of procedure. It seemed to their Lordships that the question did not admit of any doubt. 'To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested.'
In the course of their judgment they have referred to -- 'Nana Aba v. Sheku Andu', 32 Bom 337 (C); -- 'Delhi Cloth and General Mills Co. v. Income-tax Commr., Delhi' ; -- 'Kirpa Singh v. Rasalldar Ajaipal Singh' AIR 1923 Lah 627 (FB) IE); -- 'Sadar All v. Doliluddin Ostagar', : AIR1928Cal640 ; -- 'Hasan Abdul Karim v. Emperor', AIR 1944 Bom 252 (G); -- 'In re, Vasudeva Samiar', AIR 1929 Mad 381 (SB) (H); -- 'Ram Singha v. Shankar Dayal', AIR 1928 All 437 (FB) (I); -- 'Radhakisan v. Sridhar', AIR 1950 Nag 177 (FB) (J); -- 'Gordhandas Baldevdas v. Governor-General in Council, AIB 1952 Punj 103 (PB) (K); -- 'Nagendra Nath v. Mon Mohan Singha' AIR 1331 Cal 100 (L); -- 'Janardhan Reddy v. State', : 1SCR940 CM) and -- 'Ganpat Rai Hiralal v. Agarwal Chamber of Commerce', : 4SCR752 (N), in which the principle of the above decision has been accepted. See also -- 'Kailash Singh v. Sheopujan Singh', : AIR1952Pat380 (O).
7. Mr. Rajah Iyer has also urged that the Custodian General had no authority to revise the order of the Custodian as such power was not found in Act 47 of 1949. He urges that the order of the Custodian of 25-8-1950 became final and was subject only to an appeal by the appellants if the same had gone against them and that that order had therefore become final and could not be set aside by the Custodian in the exercise of revisional powers given to him under the later Act. He has referred in this connection to cases reported in -- ''; -- 'Examiner of Local Fund Accounts v. Subramania Mudaliar', AIR 1943 Mad 208 (1) (P); -- 'Surayya v. Inspector Municipal Councils and Local Board, Madras', : AIR1944Mad148 and -- '32 Bom 337 (C)'. In -- 'AIR 1943 Mad 208 (1) (P)', their Lordships pointed out that there is no logical distinction between a right of appeal and the right of a final judgment without an appeal. Both are vested rights and cannot be deemed to be affected by later enactments or rules retrospectively unless such an enactment or rule is given retrospective operation either expressly or by necessary intendment.
8. in -- '32 Bom 337 (C)' the plaintiff filed a suit on 24-2-1906 in the Mamlatdar Court under Bombay Act 3 of 1876. In October the later Mamlatdar Courts Act 2 of 1906 came into force and by Section 2 of that Act the earlier Act was repealed. In 1807 the plaintiff whose suit was dismissed by the Mamlatdar presented an application for revision of his order under Section Section 23 of the later Act of 1906. Under the earlier Act of 1876. the Collector had no power of revision. It was held by Sir Lawrence Jenkins, C. J. and Batchelor, J. that having regard to the words of the Bombay General Clauses Act the Collector had no jurisdiction; to hold otherwise would be to affect a legal proceeding in respect of a right which had accrued under the old Act and that to disturb an existing right of appeal was not a mere alteration in procedure.
9. in Mysore also in -- 'Gururajachar v. Ran-giah', 52 Mys HCR 455 at p. 484 (R), that principle had been accepted. In that case the Revenue Commissioner made an order in April 1945 under the House Rent Control Order as it then stood. Subsequently in August 1945 an amendment was made providing for revision by Government of such an order by the Revenue Commissioner and the tenant applied for a revision of the order in September 1945. Venkataramana Rao, C. J. and Venkata Ramaiya, J. held that the order of the Revenue Commissioner became final when it was passed in April 1945 and there was no remedy by way of revision under the House Rent Control Order as it then stood. The plaintiff had acquired a vested right to a final judgment and as observed in -- '', the provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.
10. Mr. Rajah Iyer has also referred to certain rulings of the Custodian General in Cases Nos. 34, 42, 46 and 60 which arose before him and which are found in Vol. 1, Rulings of the Custodian General, published by the Federal Law Depot, Delhi. These rulings may not be binding on the Civil Courts, but they show that even the Custodian General has recognised the above principle and lend great support to the stand taken by the appellants in connection with the writ petitions that their remedy is not clear and that'as the Custodian General himself has conceded in such cases that an appeal lies to the High Court it would not be reasonable to ask them to apply to him in appeal or revision under the later Act and await his decision when by that time their right to appeal to the High Court would have become barred by time.
It is not necessary to refer to those cases in detail. But it might be noticed that in Case No. 46 the Custodian General has laid down that a right of appeal to the particular forum which existed at the time the action was started is not taken away or otherwise affected by any change in the law taking place during the pendency of the action unless such change has either expressly or by necessary intendment been given a retrospective operation, that proceedings commenced by the appellant under Section 8 of the Ordinance No. 12 of 1949 did not fall within ambit of Section 55 (3) of Ordinance No. 27 of 1949 and that the appeal from the order of Authorised Deputy Custodian under the Ordinance No. 27 of 1949 declaring certain properties as evacuee properties lay to the High Court and not to the Custodian General.
11. For the appellants reliance has also been placed on -- 'Madhava Rao v. Surya Rao', : AIR1954Mad103 (FB) (S) and -- 'Raghuraj Prasad Singh v. Basudeo Singh', : AIR1950Pat318 (T), where it was held that where there is no inherent jurisdiction neither acquiescence nor request nor any application on the part of a party can give such jurisdiction. In the first of these cases the petitioners applied under Article 226 of the Constitution of India for the issue of a writ to quash an order of a Deputy Registrar of Cooperative Societies in the matter of some election dispute. They had not objected before that officer to his jurisdiction to pass such an order and had also carried his order in revision to the Registrar of Co-operative Societies. It was held that this fact did not preclude them from questioning the jurisdiction of the Deputy Registrar before the High Court. In -- 'United Commercial Bank Ltd. v. Their Workmen', : (1951)ILLJ621SC (U), the Supreme Court has observed that no amount of consent will cure the initial want of jurisdiction.
12. in this connection there is another circumstance which would vitiate or at least seriously raise a doubt regarding the validity of the Custodian General's exercising of powers of revision in this case. The Mysore Act 47 of 1949 was repealed by Act 74 of 1949 which came into force on 29-11-1949. Act 31 of 1950 became law in Mysore also only on 17-4-1950 and by Section 58, Clause (i) of that Act, only the Administration of Evacuee Property Ordinance 1949 (27 of 1949) was repealed With no reference to any Mysore State laws with a saving clause 2 that the previous operation of that Ordinance was not affected by the repeal and subject thereto anything done or action taken under that Ordinance should be deemed to have been done under Act 31 of 1950.
This Section 58 was later on repealed and substituted by Act 66 of 1950. Sub-clauses (2) and (3) of that section came into force on 7-12-1950. The first order of the Custodian was passed on 22-8- 1950. On that date there was no provision similar to Sub-clause (3) of Section 58 of Act 66 of 1950 declaring that proceedings taken under any corresponding law in any State was to be deemed to have been taken under Act 31 of 1950, thereby attracting the operation of Section 27 of that Act, viz., powers of revision of the Custodian General. The Mysore Act 74 of 1949 no doubt provided for a revision of the Custodian's order by the Custodian General. But that was also an emergency Act passed under Section 31 of the Government of Mysore Act and it automatically expired and ceased to exist after six months, i.e., on 29-5-1050.
The Custodian General has not, apparently therefore and for reasons which are not clear or explained, acted under any provision of that Act but has purported to act expressly under Section 27 Of Act 31 of 1950. Until by Act 66 of 1950, Section 58, Clauses (2) and (3) were amended the case could not be brought under Act 31 of 1950 or the powers of revision provided in it by Section 27 applied even if the same could otherwise have been exercised in the present case.
13. Mr. Rajah Iyer has also urged that the proceeding under Sections 5, 6 and 8 of Act 47 of 1949 have no corresponding parallel in Act 74 of 1949 or Act 31 of 1950 and that the provisions of the later two Acts are quits different from those in the first Act. He represents that on the date of the commencement of proceedings under Act 47 of 1949 there was no Custodian General in existence and hence the order of the Custodian dated 22-8-50 became final under Section 30 (6) of the Mysore Act. The re visional powers of the Custodian General which came into existence later could not therefore be exercised by him so as to take away from the finality attached to that order, which was in the nature of a vested right, and that right could not and had not been infringed by Act 31 of 1950.
He therefore contends that the saving clause contained in Section 58 of Act 31 of 1950 cannot be invoked for the purpose of enabling the Custodian General to exercise his powers of revision in the present case, that the scheme of the later Acts is quite different from that of the earlier, that the later Acts introduced new and radical changes in the method by which the property of a person should be declared evacuee property and he, as an evacuee or intending evacuee and that the later Acts provided for a different procedure for enquiry and determination of those questions and prescribed quite different and new forms of appeal and revision. While the orders under Act 47 of 1949 were open to be examined by the High Court the later Acts took away that very valuable right and gave other overriding powers to the Custodian General. This could not be merely a matter of procedure.
Neither the Mysore Act 74 of 1949 nor Act 31 of 1950 expressly or even impliedly refers to this right of appeal to the High Court which the parties had come to possess by reason of the well recognized principles of law discussed above. The saving clauses in Section 53 of Act 74 Of 1949 or Section 58 of Act 31 of 1950 could under the circumstances only refer to the procedure to be adopted, the, effect to be given and the implementations to be made in respect of prior orders and pending orders and not to already acquired vested rights of appeals.
In a case like the present when through executive orders rights to valuable property and status of an Indian citizen are sought to be decided finally, without recourse to judicial process one would not be too ready to accept the argument that by the saving clauses which are contained in Section 53 of Act 74 of 1949 and Section 58 of Act 31 of 1950 it is to be implied that the already vested valuable right in pending proceedings of recourse to the highest Court in the land should be taken away by a 'side wind'. In any event one would also hesitate to deny now to the High Court power and jurisdiction to examine such orders which they undoubtedly possess under Article 226 of the Constitution to correct palpable errors affecting the rights and liberty of subject guaranteed under Chapter III of the Constitution if they find that any orders have been made without jurisdiction and are not justified by the definition of evacuee and evacuee property in Act 47 of 1949.
14. in the light of the above discussion we think that the appeals to this Court are competent,
15. We have been taken through the documentary and oral evidence. Mr. Rajah Iyer has contended that the same do not justify the finding that the appellants are evacuees, that the first order of the Custodian was correct, that the subsequent order of the Custodian, which is appealed against, is based not on evidence but on there suspicion and that the Custodian has not kept in view the difference between an Evacuee and an intending Evacuee. The learned Advocate-General also has argued in support of the order.
'Evacuee' has been defined in Section 2, Clause (c) of Act 47 Of 1949 as follows:
' 'Evacuee' means any person (1) who, on account of setting up of the Dominions of India and Pakistan, or on account of civil disturbances or the fear of such disturbances, leaves or has, on or after the 1st of March 1947, left any place in Mysore for any place outside the territories now forming part of India; or
(ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in Mysore, or whose property in Mysore has ceased to be occupied, supervised or managed by any person or is being occupied, supervised or managed by an unauthorised person; or
(iii) who has, after the 1st of March 1947, acquired in any manner whatsoever any right to, interest in or benefit from, any property which is treated as evacuee property under any law for the time being in force in Pakistan.' The Custodian has rightly found that the appellants' case does not fall under Sub-clause, (ii) and (iii) of that definition and that the only question is whether it falls under Sub-clause (i).
16. As the appellants have not left Mysore to any place outside India, in the sense that they were on the date when the proceedings were started and are still residing in Mysore, their case has to be considered only with reference to the words 'leaves (or has), on or after the first day of March 1947, (left) any place in Mysore.' The word 'leaves' in that context prima facie applies to a person leaving Mysore after the coming into force of Act 47 of 1949 in contradistinction to a person who has already left on or after 1-3-1947. It cannot apply in any case-to short temporary visits made to a place outside Mysore on some legitimate business followed by a return to India. It cannot also include a person who might merely have had some remote or passing inclination to make a choice of his future domicile outside India and who has returned to Mysore before the passing of the first (Emergency) Act on 7-7-1949.
As pointed out in -- 'S. M. Zaki v. State of Bihar', : AIR1953Pat112 (V), the words 'leaves or has left' imply some amount of permanent stay or residence outside India, though not to the extent of completely abandoning the Indian domicile. It could never have been the object of the Legislature when they enacted that Act to declare people who had gone out of Mysore for a short time and had returned to Mysore even long before that Act was contemplated, i.e., between 1-3-47 and 7-7-49, as evacuees or to declare their properties as evacuee properties and to render them homeless paupers even if they choose to continue to reside in Mysore or drive them out of India unless their cases fell under Sub-clause, (ii) and (iii) of Section 2 (c).
It must be remembered that in Act 47 of 1949 there was no definition or reference to an intending evacuee and that the same came in only in the Second (Emergency) Act 74 of 1949. That would have been a very unreasonable way of dealing with Indian Nationals who had returned before the passing of Act 47 of 1949 having made up their mind to remain as citizens of this country particularly where, as in this case, both the going and returning was under proper and valid temporary permits or no objection certificates. It has not been shown that the appellants who had ample scope and funds at their disposal when they visited Karachi had acquired any properties there or effected any exchange of their own properties in India with any properties situated in Pakistan. This would have been a relevant and even a strong indication of their intention or object of their visit.
17. The Custodian has not also paid sufficient attention to the words 'evacuee means any 'person' who (leaves or has left), 'on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances' in that Sub-clause. He has not expressly found that the appellants who were living and carrying on business and owned considerable properties in South India had gone to Karachi (Sind) in Pakistan for any of those reasons. The evidence in the case merely shows that they had gone there with the perfectly lawful object of meeting the members of their family and not with a view to make arrangements for leaving this country after realizing their assets.
The first Emergency Act as well as the later Acts were designed for the State to seize, preserve and manage the property of evacuees or 'persons' who had chosen to leave India for specified reasons some time before or even after the first Act was passed. This was to be done lor the benefit of displaced persons and to prevent such properties from being left uncared for or frittered away or wrongfully taken up by others or transferred or taken away outside India. The Act was not meant to punish people or impose the penalty of depriving them of all their properties or to drive them out of this country Or render them homeless paupers merely because they were for a short while panicky or foolish and of two minds as to where they should settle down here or elsewhere -- and who had done nothing else with their properties which would bring them within tlie definition of evacuees or intending evacuees.
As pointed out by the Supreme Court in --'Ebrahim Aboobaker v. Tek Chand', : 4SCR691 (W), the provisions of the Administration of Evacuee Property Act
'far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and his property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him. These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions. The property does not suffer from any inherent infirmity but becomes evacuee because of the disability attached to the owner. Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.'
18. The Custodian has a.lso not borne in mind that the definition must apply to the 'person' who is to be found to be an evacuee. Merely because some members of his family have migrated to Pakistan and he has sent some monies to them the person cannot be treated as an evacuee and his property in India as evacuee property. This is clear even from the definition of 'intending evacuee' and the proviso to Section 2 (c) (i) and the definition of the words 'members of the family' as meaning any member of the family of any person who is wholly dependent upon the earnings of such person for the ordinary necessaries of life or who shares with such evacuee in the ordinary expenses of the household to which they jointly belong or who owns property or carries on business jointly with such evacuee.
If, therefore, as found in this case the appellants have transferred some funds for legitimate purposes of either their trade or for providing maintenance to the members of their family who might have left for Pakistan on account of disturbances, it would not necessarily make the appellants evacuees. It is well-known that on account of the disturbances the families who were living near the border of the two countries became separated and that has been one of the tragedies of the partition. The persons who are living in India at the time of the partition would have had also relations in Pakistan who are dependent on them for support -- like aged parents, or wife and children who happen to be living separately at the time and who might not even be agreeable to come back -- and if funds were legitimately sent to them, such sending of the funds to them would be specifically saved from being inferred as intention to migrate from India.
19. The Custodian has found that the wife and children of one of the appellants Abdul Shacoor are still in Pakistan and that one wife and her children and two of his children by the first wife have all along been here. He has also found that their return had not been secured though some years have now elapsed and that that is an indication of the appellants being evacuees. The appellants have stated that they have applied to the authorities for permission to bring them down to India from Pakistan. This has not been refuted by the Custodian. These proceedings have been pending from 1948 and the properties of the appellants had become vested in the Custodian. They have been kept sufficiently uncertain, busy and worried about their own affairs here while the means for getting down the members of their family from Pakistan were greatly diminished.
Such permission for people to migrate from Pakistan to India is not shown to be either so easy or so readily obtainable, and we see nothing in the definition of evacuee which would justify holding that if some members of a family of a person are in Pakistan or have migrated to Pakistan on account of the disturbances or are living there, the person in India is an evacuee. In Case No. 52 decided by the Custodian General he has recognized that neither a mere expression of an intention of going to Pakistan nor the mere circumstance of one's son having migrated to Pakistan can make a person an evacuee.
20. (His Lordship then considered the evidence relating to certain alleged transactions of the appellants and reached the conclusion, namely). On the facts and circumstances disclosed in. this case we have no hesitation in holding that the appellants are entitled to succeed and that these appeals should be allowed. We accordingly allow the appeals and set aside the order of the Custodian dated 2-12-1952. The respondents will pay the costs of the appeals. Advocate's fee Rs. 250/- in each appeal.
21. When the preliminary objection was taken regarding the maintainability of the appeals, the appellants have filed two writ applications and have prayed that the order of the Custodian may be quashed. We have found in the course of our judgment in the appeals that the Custodian General had no jurisdiction to interfere in revision and set aside the first order of the Custodian. In addition to the ground that the Custodian-General had no such revisional jurisdiction we think that the appellants can reasonably complain that their fundamental rights under the Constitution of India are being infringed by the order of the Custodian General and that they are entitled to relief at the hands of this Court on that ground also.
It is undisputed that the appellants were citizens of India within the meaning of Article 5 of the Constitution. They were born in the territory of India; their parents were also born in the territory of India and they have been residents in the territory of India for long over five years preceding the commencement of trie Constitution. Article 7 provides that notwithstanding anything in Articles 5 and 6 a person who has, after the 1st day of March 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India; but even that is subject to the proviso that nothing in that article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return.
The expression 'migrated from the territory ofIndia to the territory now included in Pakistan'used in Article 7 can only mean departure fromthe territory of India to Pakistan with the intention of residence or settlement in that country.As pointed out in -- 'Shabbir Husain v. State ofU. P.', : AIR1952All257 (X), a temporary visit toanother country on business or otherwise cannotamount to migration. Whether a person hasmigrated from one country to another or hasgone there on a temporary visit is primarily aquestion of fact which will have to be decidedon the circumstances of each case. In that casethe applicant who was an Indian subject andwas born and brought up in the District ofBijanur in Uttar Pradesh was carrying on clothbusiness. He sent some of his goods to Lahoreand in order to dispose of them he went to Lahorefor two months. Before his departure fromBombay to Pakistan and within the period ofhis temporary visit to Pakistan he expressed his Intention that he would be going there on a temporary visit and would return home after finishing his business.
After finishing his business he did return to India. It was held that in the circumstances it was not possible to hold that a temporary visit of the kind undertaken by the applicant amounted to migration from India to Pakistan and that the applicant could not be deemed to have lost the citizenship of India and could not be ordered to be removed from India though he had come into India under a temporary permit. The present is-a stronger case as the appellants have gone to Pakistan & returned on temporary 'no objection' certificates.
Under Art, 19 (1) as citizens of India the appellants have a right to reside and settle in any part of the territory of India and to acquire, hold and dispose of property in India subject of course to the exceptions mentioned in Sub-clause (v) of that Article, and they would of course be liable to lose that right if the appellants were declared evacuees or intending evacuees. If they are not evacuees and their fundamental rights are sought to be infringed by an order which is bad for want of jurisdiction or other similar grounds, this Court has undoubtedly power under Article 226 of the Constitution to grant them relief and to quash the proceedings. No doubt ordinarily the remedy of persons like the appellants against whom the provisions of the Evacuee Property Act are enforced and who feel aggrieved is to seek relief under that Act by proceedings prescribed in that Act. But where, as in this case, it is not quite clear that the appellants have no right to appeal to this Court and it is not also clear under what particular Act the proceedings before the Custodian have been taken and the order passed and where the appellants have good ground to contend that the Custodian General had no Jurisdiction in revision to re-open the earlier proceedings and pass an order of remand which has now resulted in the present order of the Custodian, we think that this Court ought not to refuse relief to the appellants under Article 226 of the Constitution on the ground that they may have any other equally certain, clear or effective remedy.
22. in this view, we allow the applications anddirect a 'writ' quashing the order of the Custodian dated 5-12-1952 to issue. There will be noseparate order as to costs in these petitions.
23. Appeals and applications allowed.